Fair Use: What is Transformative?

What constitutes a transformative use of a copyrighted work?

In 1994, the Supreme Court reviewed a case involving a rap
group, 2 Live Crew. The band had borrowed the opening musical tag and the words
(but not the melody) from the first line of the song “Pretty Woman” (“Oh,
pretty woman, walking down the street”). The rest of the lyrics and the music
were different. In a decision that surprised many in the copyright world, the
Supreme Court ruled that the borrowing was fair use. Part of the decision was
colored by the fact that so little was borrowed. But the Supreme Court also
added a new dimension to the fair use analysis. It focused on one of the four fair
use factors -- the purpose and character of the use -- and emphasized that the
most important aspect of the fair use analysis was whether the purpose and
character of the use was “transformative”

In the 2 Live Crew case, the use of the lyrics was
transformative because they poked fun at the norms of what was “pretty.” Justice Souter wrote:

…
the enquiry focuses on whether the new work merely supersedes the objects of the
original creation, or whether and to what extent it is “transformative,”
altering the original with new expression, meaning, or message. The more
transformative the new work, the less will be the significance of other
factors, like commercialism, that may weigh against a finding of fair use.

(By the way, the rap group had initially sought to pay for
the right to use portions of the song but were rebuffed by the publisher, who
did not want “Pretty Woman” used in a rap song.) (Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994).)

In the two decades that have passed, the standards of
transformative continue to evolve. Still, the status of a transformative work
seems to be defined by two questions:

Has the material you have taken from the
original work been transformed by adding new expression or meaning?

Was value added to the original by creating new
information, new aesthetics, new insights, and understandings?

Below are some summaries of cases involving “transformative
claims.”

Library
Fair Use (Transformative) Libraries that provided a search engine company
(Google) with books to scan were protected by fair use when the libraries later
used the resulting digital scans for three purposes: preservation, a full-text
search engine, and electronic access for disabled patrons who could not read
the print versions. Important factors. The three purposes for which the scans
were used were transformative. The court also did not find any evidence of
financial harm. The Author’s Guild v.
Hathitrust, No. 1:11-cv-06351-HB (S.D.N.Y., October 10, 2012). -

The Harry
Potter Encyclopedia (Not Transformative). Although the creation of a Harry Potter
encyclopedia was determined to be “slightly transformative” (because it made
the Harry Potter terms and lexicons available in one volume), this
transformative quality was not enough to justify a fair use defense. An
important factor in the court’s decision was the extensive verbatim use of text
from the Harry Potter books. (Warner
Bros. Entertainment, Inc. v. RDR Books, 575 F. Supp. 2d 513 (S.D. N.Y.
2008).)

Monster
Movie Art (Transformative). A publisher of monster magazines from the
1950s, ’60s, and ’70s sued the creator and publisher of a book, Famous Monster Movie Art of Basil Gogos.
(Gogos created covers for the magazines.) The book publisher had obtained
licenses from the artist directly, but not from the magazine publisher who
claimed copyright under work-made-for-hire principles. The district court
determined that the use was transformative. The use was for a biography/retrospective
of the artist, not simply a series of covers of magazines devoted to movie
monsters. In addition, the magazines were no longer in print, and the covers
amounted to only one page of the magazine, not the “heart” of the magazine. (Warren Publishing Co. v. Spurlock d/b/a
Vanguard Productions, 645 F. Supp. 2d 402, (E.D. Pa., 2009).)

Ed
Sullivan Clip (Transformative) A seven-second clip from the Ed Sullivan TV
was used in a staged musical history (“The Jersey Boys”) based on the career of
the musical group, the Four Seasons. The use was transformative (“Being
selected by Ed Sullivan to perform on his show was evidence of the band’s
enduring prominence in American music,” the judge wrote in the ruling. “By
using it as a biographical anchor, [the defendant] put the clip to its own
transformative ends.”) Further, the use caused no financial harm to the
copyright owners of the show. SOFA
Entertainment, Inc. v. Dodger Productions, Inc., No. 2:08-cv-02616 (9th
Cir. Mar. 11, 2013).

Prince
Collages (Transformative). The painter, Richard Prince, created a collage
using — in one collage — 35 images from a photographer’s book. The artist also
used 28 of the photos in 29 additional paintings. In some instances the full
photograph was used while in others, only the main subject of the photo was
used. The Second Circuit Court of Appeals held that to qualify as a
transformative use, Prince’s work did not have to comment on the original
photographer’s work (or on popular culture). The Court of Appeals concluded
that twenty-five of Prince’s artworks qualified as fair use and remanded the
case to determine the status of the remaining five artworks. Cariou v. Prince, U.S. Court of Appeals for the 2nd Circuit, No.
11-1197.

Nonprofit
Immigration Use (Transformative). A nonprofit organization posted a
newspaper article about police discrimination on its website. The newspaper
assigned its right in the article to a third party, Righthaven, who filed the
lawsuit.. The court’s reasoning was influenced by the fact that Righthaven had
acquired the copyright and was not in the newspaper business (it appeared to be
in the “litigation business”). For that reason, the court reasoned that the
nonprofit’s use was transformative because its purpose was to educate the
public about immigration issues, whereas Righthaven had no such purpose for the
article (because it was not in the news business). And also, because Righthaven
was not in the news business, it could show no harm from the defendant’s
dissemination of the article. Righthaven
LL v. Jama, No 2:2010-cv-01322, 2011 WL 1541613 (D. Nev. April. 22, 2011).

Naked
Demi (Transformative). A movie company used a photo of a naked pregnant
woman onto which it superimposed the head of actor Leslie Nielsen. The photo
was a parody using similar lighting and body positioning of a famous photograph
taken by Annie Leibovitz of the actress Demi Moore for the cover of Vanity Fair
magazine. The movie company’s use was
transformative because it imitated the photographer’s style for comic effect or
ridicule. (Leibovitz v. Paramount
Pictures Corp., 137 F.3d 109 (2d Cir. N.Y. 1998).)

Dr. Seuss
(Not Transformative). An author mimicked the style of a Dr. Seuss book
while retelling the facts of the O.J. Simpson murder trial in The Cat NOT in
the Hat! A Parody by Dr. Juice. The Ninth Circuit Court of Appeals determined
that the book was a satire, not a parody, because the book did not poke fun at
or ridicule Dr. Seuss. Instead, it merely used the Dr. Seuss characters and
style to tell the story of the murder. Important factors: The author’s work was
nontransformative and commercial. (Dr.
Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir.
1997).)

Posting
on social media (Not Transformative). In an anniversary tribute on
Facebook, a Fox news producer posted an iconic unmodified photo of firefighters
hoisting a flag after the 9/11 bombings ("Raising the Flag at Ground
Zero”). The photo was juxtaposed with an image of soldiers raising the flag at
Iwo Jima and the addition of the caption #neverforget. After the photographer
sued, Fox claimed fair use for the posting, arguing that posting on social
media is by its nature transformative because such postings promote comment and
criticism. The district court rejected the argument and held that the posting
was not a fair use. (North Jersey Media
Group Inc. v. Jeanine Pirro and Fox News Network, LLC. No. 13 Civ. 7153 (ER) (S.D. N.Y. 2015).)

Court-filed
briefs reproduced in legal database (Transformative).In White v. West Publishing,
the district ruled that legal databases such as Westlaw and Lexis could
incorporate legal briefs into their databases as such searchable use of
court-filed documents was transformative (and therefore excusable as a fair
use). The use was transformative because the lawyers created the briefs to
assist their clients, but the legal services were using the briefs as research
tools. (White v. West Publishing,
CV-01340-JSR (S.D.N.Y. 2014).)

Recreating
three scenes from Deep Throat (Transformative).The re-creation of three scenes from
the film, Deep Throat, was a fair use
when made for a biographical film about actress Linda Lovelace. The court as
persuaded by the fact that the re-created scenes were used in a
non-pornographic film biography (with no nudity) about an actress who
ultimately railed against pornography. This use illustrated a strong
transformative purpose and demonstrated that the copyright owner of Deep Throat would be unlikely to lose
revenue from this non-pornographic use. (Arrow
Productions, LTD v. The Weinstein Company LLC, Case 1:13-cv-05488-TPG (D.C. S.D.N.Y.
8/25/14).)

Book scanning to create a database (Transformative). In a 2014 case, the Second Circuit held that scanning books
to create searchable database was a “quintessentially transformative” fair use.Many colleges, universities and
nonprofits had offered their book collections to The HathiTrust, a nonprofit
that created a 10 million book database. The Second Circuit ruled that the
Hathitrust was permitted under fair use principles to electronically scan their
copyrighted books to create a full-text searchable database. (Authors Guild, Inc. v. HathiTrust __ F.3d__ (2d
Cir. 2014).)